The Consequences of Greed

Uinta Basin, on the way to Red Fleet State Park
Photo: Mia McPherson, On the Wing Photography

U.S. District Judge David Barlow – a Trump-appointed federal judge – killed the Bureau of Land Management’s plan to lease 59 parcels in Utah’s Uinta Basin for oil and gas development. His December 10 decision was a very near thing, and serves as a lesson in both the consequences of greed and the serious deficiencies of the current National Environmental Policy Act.

Remember that the National Environmental Policy Act (NEPA) is a procedural law. That procedural law has two aims. It requires a federal agency to consider every significant aspect of the environmental impact of a proposed action and it ensures that the agency will inform the public that it has indeed considered those environmental concerns in its decisionmaking process. It is “strictly a procedural statute” and does not require substantive results. That’s important to understanding NEPA: it doesn’t stop a project from being developed, no matter how bad or dangerous an idea. It only requires that the environmental impacts be fully disclosed.

For example, the Uinta basin already has a pretty severe winter air quality problem, centered around ozone. The proposed lease sale would have gravely contributed to that existing problem, making it still worse. But BLM, Judge Barlow found, adequately disclosed and analyzed that issue. Again, NEPA doesn’t stop stupid projects; it only requires the environmental impacts be properly analyzed and disclosed.

But NEPA also requires that reasonable alternatives be considered. Part of the considerations BLM was required to give were alternatives to the proposed lease sale. BLM only considered two, to lease all of the parcels or not lease any. The judge, quite properly, found that other alternatives should have been proposed, including “buffer” zones around Dinosaur National Monument, which would have excluded a half a dozen parcels from the proposed lease. BLM’s failure to consider leasing less than all the parcels was, Judge Barlow concluded, arbitrary and capricious, and made the environmental assessment fatally flawed. BLM has to start over, and the proposed lease sale was cancelled until a new, proper environmental assessment is completed.

So, yay, the good guys win! Public lands are preserved for the public, not for the oil and gas industry. Important Greater Sage Grouse habitat is kept intact. But it was a very near thing. Out of the five or so issues that the National Parks Conservation Society and other plaintiffs raised, the failure to consider alternatives was the only one that gained traction.

Note, too, that BLM and the oil and gas industry lost because of greed. If they had been willing to carve out the buffer areas that the plaintiffs wanted, Judge Barlow would have let the lease sale go ahead. It’s entirely appropriate, WC thinks you will agree, that the Trump Administration lost because of its unremitting greed.

But there’s another important lesson to draw from this decision. The plaintiffs quite properly argued that in considering the cumulative impact of the proposed leases, BLM improperly failed to consider the impact of all the additional greenhouse gases that would end up in the atmosphere as a consequence of the oil and gas leases. Anthropogenic climate change is as real and as serious as a heart attack. The exploration, development and production of crude oil and natural gas on these parcels will aggravate that problem.

BLM dodged the issue, claiming it was “too speculative” to allow analysis. That’s nonsense. As BLM set out in its analysis, there are very good estimates (although BLM grossly underestimated the amounts of emissions by assuming just one well per parcel). Yet the court let BLM get away with no analysis of the cumulative impact on us of all that additional CO2 and methane (CH4).

An agency is not required to engage in analyses, including cumulative impact, if they are “too speculative or hypothetical to meaningfully contribute to NEPA’s goals of public disclosure and informed decisionmaking.” “NEPA does not require an agency to consider the environmental effects that speculative or hypothetical projects might have on a proposed project.”

Rocky Mountain Wil et al. v. Bernhardt, December 10, 2020, p. 15 (U.S. District Court, Utah)

Judge Barlow let BLM skate by without any analysis of the single most consequential environmental impact the proposed lease sale: its impact on the global warming crisis. That’s just wrong. The flaw may be in the NEPA statute, in the NEPA case law, or Judge Balow’s analysis. But it’s patently, egregiously wrong. In their greedy haste to get fossil fuels out of the ground, the intent of NEPA has been gutted. That needs to be fixed.

For now, let’s celebrate an important win. But let’s use this narrow victory as a reminder to revise NEPA, too.